Review into Morrison’s pandemic actions – a storm in a saucer, not even a teacup

Last week the Albanese Federal Labor Government released the report of its Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments by former High Court Judge the Honourable Virginia Bell AC (henceforth the Bell Inquiry).

This inquiry was appointed by the Albanese Government following an earlier review it had requested to be done by the Commonwealth Solicitor General (a public servant) into the "validity of the appointment of Mr Morrison to administer the Department of Industry, Science, Energy and Resources" (DISER).

The Solicitor General's review had been initiated following the publication of Plagued in August by two Canberra journalists, Simon Benson and Geoff Chambers, which included revelations by the former prime minister that he had taken on several major portfolio powers of his Cabinet ministers during the pandemic crisis. That these were not known publicly including by most of his Cabinet at the time, provoked outrage and condemnation that Morrison had acted unconstitutionally, and therefore unlawfully.

The Solicitor General report released later in August found that the exercise of these powers in relation to DISER by Morrison was constitutionally legal and had been correctly approved by the Governor-General. However, the Solicitor General suggested that the secrecy of the appointment "fundamentally undermined" responsible government as Parliament had not been informed. It confirmed that Morrison had exercised similar powers over other portfolios including: Finance, Treasury, Home Affairs and Health.

On release of the Solicitor General's report Prime Minister Albanese concluded that the seriousness of these findings was "something that goes to our very system of government" and cannot be dismissed and thus necessitated a further inquiry. Consequently, the Bell Inquiry was quickly established in late August.

The Bell Inquiry's terms of reference was to: report on the facts and circumstances surrounding the appointments; their implications; the practices; and to propose "procedural or legislative changes" to enhance "transparency and accountability" in the future. The Bell Inquiry was not required to test the constitutional validity of Morrison's actions as this had already been resolved by the Solicitor General in relation to DISER and would apply to all other cases.

What is a public inquiry?

Now, let's be clear what these two reviews were.

The Solicitor General is a Commonwealth official, a public servant, who gives legal advice to the government of the day and represents it in legal proceedings. Solicitor Generals are often asked by governments to give an opinion on some legal issue. They are just that, opinions. They are not binding enforceable decisions and can be challenged.

The Bell Review is a public inquiry with membership from outside of government and some level of public processes – seeking submissions and releasing its report. However, such public inquiries are instruments of executive government – appointed by executive government to meet the needs of executive government, which determines its membership, terms of reference, timeframes, resources and what to do with its recommendations. This public inquiry is a non-statutory body. Unlike a royal commission appointed under the Royal Commission Act, it has no coercive statutory powers of investigation, to call witnesses, procure files, take evidence under oath or to provide legal protection to witnesses. Nor is it a court of law. It does not make 'judgements' just recommendations.

What did the Bell Inquiry do and say?

The Bell Inquiry confirmed that except for the Health Minister, Greg Hunt, a few senior officials in Health and staff in the Prime Minister's Office and PM Department, these arrangements were unknown to most other departments and ministers. It seems that even Josh Frydenberg, the then Treasurer was unaware of Morrison's actions.

In Bell's assessment there had been no need for these powers to be accumulated by the Prime Minister Morrison so as to manage the pandemic. Other arrangements could have been easily employed should a minister become incapacitated or was not performing. According to Bell, Morrison's arrangements were "not easy to understand" and seemed to be an "exorbitant means" for Morrison to be able to overrule his ministers' decisions if he thought necessary during the pandemic. Like the Solicitor General, Bell believed the these arrangements should have been made public.

Nevertheless, Bell found that except in relation to one minor issue Morrison "did not exercise any of the powers" he had taken over, and consequently there was not any impact on the operations of the ministry.

The Bell Review amounts to political commentary when it contends that Morrison's arrangements were "apt to undermine public confidence in government" and were "corrosive of trust in government". There is no evidence for this statement – it is an exercise in political judgement, not legal assessment. Nor are there any specific laws by which to measure such assessment. Remember, this is a public inquiry, not a court of law.

What's the wash-up?

So, what do we have after these two reports?

First, let's be clear – we only know about these secret arrangements because Morrison when PM in interviews with two journalists told them and that was highlighted in their book released in August. (Attorney General, Mark Dreyfus, condemned Morrison for breaking cabinet confidentiality in talking to the journalists about this while PM).

Second, Morrison acted constitutionally and therefore lawfully. So, what exactly is the Albanese Government pursuing him over?

Third, except in one, seemingly minor issue, Morrison never used any of the powers he had accumulated. So, no spending was authorised, no policy initiatives taken and thus no harm done (some might contend he should have, for instance taken on the States about border closures, excessive lockdowns, school closures and so on – but he didn't!).

Fourth, it was largely secret but the most important minister in the pandemic, the Health Minister, was informed, as were some of his senior officials, the PMO and the Prime Minister's Department. Secrecy or confidentiality is a feature of government so by itself is hardly a crime and it is sometimes necessary. Indeed, during the Second World War there were eleven inquiries with the power of royal commissions, that were conducted secretly under the National Security (Inquiries) Regulation 1941, whose reports were not released till after the War (eg the Lowe Commission of Inquiry into the Japanese bombing of Darwin in 1942).

What this whole episode highlights is Morrison's judgement – or rather his misjudgement. He did not trust many of his colleagues, though not unusual in politics, this mistrust seems to have been taken further by Morrison (look at what happened to his predecessors). He also may have had an exaggerated sense of his own capacities, importance and 'rightness' – a hubris that many leaders share. He certainly can be condemned for political ineptitude and even stupidity but that is not an offence deserving any more punitive action, like a censure motion in parliament, or that he should resign as some in the media, and even in his own party suggest.

Given what happened in Australia during the pandemic – the excessive lockdowns, the suspension of freedoms and parliaments, the unrestrained spending, and the confusing mandated health instructions, then Morrison's misdemeanours seem minor in comparison. It was a storm in the saucer not even deserving a cup. And hasn't Morrison suffered his just desserts – he lost government, the prime ministership, and leadership of the Liberal Party.

What is the Albanese Government's motives?

This begs the question – why has the Albanese Government invested so much energy into what is a seemingly a trivial offence?

The answer is obvious – it is the politics of revenge. By the Albanese Government focusing on this area it is emphasising its credentials in 'cleaning up' government. By so doing it seeks to delegitimise the previous administration, its leader, and the Coalition's key credential of respectability and conservative constitutionalism. This is reinforced by the Albanese Government's support for an anti-corruption body and its Royal Commission into the Robodebt Scheme. These 'clean up' actions by the Albanese Government, as has occurred in other times and places, is nothing more than:

… political phenomena. Decisions to initiate them are political, as are their scope and initial targets … clean-ups are political instruments which may be used to … delegitimise the previous regime, to purge opposition, to manipulate the political agenda.

Interestingly when asked by the media at the press conference announcing the Bell Inquiry, Prime Minister Albanese averred appointing a full, independent inquiry to review Australia's response to the pandemic unlike the United Kingdom or Sweden. The reasons are clear. Any such review would necessarily assess looking at Labor administrations in Queensland, Victoria, and Western Australia and the two territories.